The main legal point established in the judgment is the interpretation and application of Order 26 Rule 4 and 4A of the Code of Civil Procedure, allowing the appointment of a commissioner to record the evidence of a witness residing within the local limits of the court's jurisdiction.

ORDER :

This application has been filed by the plaintiff on 18.12.2017 seeking following orders :

"Your petitioner therefore humbly prays Your Lordships for the following orders:-

(a) An order be passed appointing a fit and proper person as Commissioner to record the Evidence of Key a Guha being the attesting witness of the last Will and Testament of the said Pranati Ghosal dated 23rd February, 2014 on commission to be held in Kolkata on such terms and conditions as this Hon'ble Court may deem fit and proper;

(b) The Commissioner so to be appointed herein may be directed to file his report with the Department of this Hon'ble Court within such time as this Hon'ble Court may deem fit and proper;

(c) An order be passed directing the Registrar Original Side to take appropriate steps for carrying the records for the above suit in the aid of the said commission;

(d) Costs of an/or incidental towards the commission proceeding to be caused in the cost;

(e) Such further and/or other order or orders be passed and/or direction or directions be given as this Hon'ble Court may deem fit and proper."

2. In the application it has been offered by the petitioner that one Smt. Keya Guha is one of the attesting witnesses of the Last Will and Testament of Pranati Ghosal dated 23.02.2014. The said Keya Guha is not only the attesting witness of the said last Will and Testament but also close family friend, enjoying a long association with the family of the deceased and knows the petitioner and the caveatrix from their childhood. It has, therefore, been contended that her testimony is of paramount importance for the substantial adjudication of the instant lis. It has been stated on oath by the petitioner that the said Keya Guha is about 70 years of age and has been suffering from various ailments. If it is taken to be true, she was undergoing treatment from celulitis (swelling and water retention under the soles of the feet) and osteoarthritis and as such she has extreme difficulty in walking and is unable to stand for a continued period. Apart from the above she is also suffering from diabetes, hypertension and ischemic heart diseases with lumbago and a ssiaemiar. According to the petitioner for the aforesaid reasons it would not be possible for the said Keya Guha to adduce evidence in Court. In support of such statement the petitioner annexed doctors certificate dated 02.12.2017.

3. Pursuant to leave granted, however, the petitioner brought on record another affidavit affirmed on 17.01.2020 to agitate that she is still not recovered from the ailments. She was suffering earlier as indicated in her affidavit affirmed on 8th December, 2017 and in the present affidavit she has made out a further case that she is now 74 years of age, lives with her husband who is not only ailing from several severe chronic medical ailments from prior to 2017, she is also faced with rather severe and drastic situation, resulting from her husband's critical health condition who is virtually bed ridden. She had all alone to look after her ill husband who is presently at home undergoing a severe surgical operation. Another certificate of a doctor has also been annexed being annexure 'A' to the present affidavit.

4. Mr. Bose, learned senior counsel appearing for the petitioner submits that in view of the averments made in the petition and the provision of Order 26 Rule 4 and 4A of the Code of Civil Procedure. It is no more not available for the petitioner to apply before a Court for appointment of a Commissioner for recording her evidence. Mr. Chatterjee, learned senior counsel appearing for the defendant has vehemently opposed the stand taken by Mr. Bose's client, Mr. Chatterjee submits that the application does not deserve to be considered at all in view of the averment made therein. He submits that even without calling for affidavits the averments itself will be proved to be insufficient to consider the prayer of the petitioner on the face of it. Mr. Chatterjee pointed out that the